Smt. Saroj v. Satish Kumar & Ors.

This is an appeal directed by one of the defendants against the judgment dated 24.12.2005, passed by Sh. Rajinder kumar Bishnoi, Additional District Judge, Rohtak, vide which the appeal preferred by the plaintiff- Satish Kumar, against the judgment dated

28.7.2004 passed by Sh. Narender Sharma, Civil Judge (Junior Division), Meham, was partly accepted. Briefly stated, the facts of the case of the plaintiff are that Satish Kumar- plaintiff filed a suit against Smt. Saroj-present appellant and other legal heirs of attar Chand, with the allegation that Attar Chand, father of the plaintiff, was owner in possession of House R.S.A. No. 2623 of 2006 -2- No. B-VV-361 now bearing No. 621/3 situated at Meham, Tehsil Meham, District Rohtak. All the sisters of the plaintiff are married and as such sale consideration of house was fixed at Rs.1,60,000/- between defendants No. 2 to 5 and the plaintiff. The amount was paid to defendants No. 2 to 5 by the plaintiff and accordingly, plaintiff became absolute owner in possession of the suit property. Agreement/settlement was executed between the parties and mother of the plaintiff also put her thumb impression on that agreement. Attar Chand died after leaving behind his five sons, three daughters and a widow. The widow of Attar Chand, namely, Bhirawa Bai also died. The plaintiff is a handicapped person. The defendants have obtained signatures/thumb impression of the plaintiff on some paper without making him understand about the contents made therein. Mother of the plaintiff had sold the suit property to defendant No.1 vide alleged sale deed dated 22.4.1996, which is illegal, null and void and not binding upon the rights of the plaintiff. It is alleged that plaintiff is the absolute owner in possession of the suit property on account of agreement dated 7.11.1995 and sale deed dated 22.4.1996 is liable to be ignored. Mother of plaintiff has no right in the property. The plaintiff is still in possession of the suit property. Plaintiff requested the defendants to treat the alleged sale deed as illegal, null and void, but to no effect. Hence, the suit. Defendants No. 2 to 8 were proceeded against ex parte, whereas, Smt. Saroj – defendant No.1 only contested the suit. In the written statement filed by defendant No.1, she has taken preliminary objections qua locus standi, that suit has been filed with mala fide R.S.A. No. 2623 of 2006 -3- intention, valuation of the suit property for the purposes of court fee and jurisdiction, have been raised. It is pleaded that plaintiff is neither owner nor in possession of the disputed house. It is further stated that plaintiff, his brothers and sisters have no concern with the house in dispute. Attar Chand during his life time has executed a valid will in favour of Bhirawa Bai, his wife, bequeathing the house in dispute to her and on that account, she became the exclusive owner. Bhirawa Bai has sold the house to Saroj vide sale deed dated

22.4.1996 for a consideration of Rs.55,000/- and delivered the possession of the same to defendant No.1. Defendant No.1 has been paying the electricity bills, water charges etc. of the said house. The agreement has been denied. Replication was not filed. From the pleadings of the parties, following issues were framed:-

1. Whether the sale deed in question dated 22.4.1996 is illegal, null and void and is liable to be set aside as alleged? OPD

2. Whether the plaintiff is in possession over the suit property detailed and described in para No. 1 of the plaint? OPP

3. Whether the plaintiff is entitled to a decree for declaration and suit property as alleged for? OPP

4. Whether the suit of the plaintiff is not maintainable in the present form? OPD

5. Whether the suit of the plaintiff has not been valued properly for the purpose of Court fee and jurisdiction? OPD R.S.A. No. 2623 of 2006 -4-

6. Relief. Plaintiff himself appeared as PW-1 and also examined PW-2 Ainshi Lal and tendered certain documents. On the other hand, counsel for the defendant examined DW- 1 Mani Ram Clerk, Municipal Committee, Meham , DW-2 Ram Dhan, DW-3 Manohar Lal, DW-4 Ramesh Kumar Dhingra, DW-5 Rajbir and closed the evidence. Learned trial Court has taken issues No. 1 and 2 together. Issues no. 1 and 2 were decided against the plaintiff and in favour of the defendant. Issue No. 3 was also decided against the plaintiff. Issues No. 4 and 5 were decided in favour of the defendant. In view of finding on issues No. 1 and 2, the suit of the plaintiff was dismissed. Feeling dissatisfied with the abovesaid judgment dated

28.7.2004, passed by Sh. Narender Sharma, Civil Judge (Junior Division), Meham, the plaintiff preferred the Ist appeal, which was heard and decided by Sh. Rajinder Kumar Bishnoi, Additional District Judge, Rohtak and vide judgment dated 24.12.2005, the sale deed to the extent of 1/9th share was held to be valid, while setting aside the sale deed in respect of remaining portion of the house. Feeling dissatisfied with the judgment dated 24.12.2005, referred to above, the present regular second appeal has been preferred by the Saroj-defendant No.1, now appellant. I have heard counsel for both the sides and have also gone through the record of the case. From the arguments addressed by counsel for the appellant, R.S.A. No. 2623 of 2006 -5- no substantial question of law has arisen in the present appeal. Attar Chand admittedly, was owner of the suit property. The said property was inherited by his 5 sons, 3 daughters and one widow. Widow – Bhirawa Bai executed sale deed in respect of whole of the property. The case of the appellant set up in the written statement is that Attar Chand executed legal and valid Will in favour of Bhirawa Bai, bequeathing his property, but no such document has been placed on the file by the appellant. So, the Ist Appellate Court has rightly held that sale deed qua the share of Bhirawa Bai in favour of appellant is valid. Bhirawa Bai cannot execute the sale deed in respect of remaining legal heirs of Attar Chand. So, in view of the above discussion, I have no hesitation in holding that no substantial question of law has arisen in the present appeal. The finding of fact returned by the Ist Appellate Court cannot be interfered by this Court as the appellant has failed to prove that the judgment of the Ist Appellate Court is perverse or the result of misreading of the evidence on the file. Consequently, the appeal is without any merit and the same stands dismissed. However, in view of peculiar circumstances of the case, parties are left to bear their own costs. All the miscellaneous applications would be deemed to be disposed of.

28.7.2010 ( K.C. Puri ) Judge